By the end of next week, and after three years in the bear hug of Japanese justice, Nissan’s former legal head, Greg Kelly, could be boarding a commercial flight out of Tokyo: entering the plane along a gantry and through the cabin door.
On an earlier flight, on a private jet taken in late 2019 by Carlos Ghosn, the boarding arrangements — inside a box lugged by ex-mercenaries — were rather different. Both exits will leave a lasting mark on Japan. Kelly’s, with potentially heavy implications for the future of Japanese plea bargaining and corporate whistleblowing, may actually be the deeper of the two.
Ghosn’s made-for-Netflix vanishing act to Lebanon inflicted two wounds. The humiliation of his escape from under the noses of the Japanese authorities stung. The heavier blow, though, was to the Japanese prosecutors whose reputation had been staked (precariously, say legal experts) on the arrest of the country’s most prominent businessman on multiple charges of financial misconduct, which he has consistently denied. Side debates on the fairness of Japanese justice, the 99 per cent conviction rates for cases that come to trial, the legitimacy of prosecutorial methods and the “true” motives behind Ghosn’s arrest will continue to rage indefinitely: the escape denies prosecutors the chance to prove to the world that they were right.
And the trial of Kelly, a US citizen who has spent two years in court fighting the single charge of conspiring to conceal the true extent of Ghosn’s pay, has neither been the slam-dunk nor the proxy Ghosn takedown that prosecutors clearly hoped it might be. The central strut of Kelly’s defence has been that, since there did not exist a signed, legally enforceable contract requiring Nissan to pay Ghosn the disputed Y9.3bn ($82mn), Nissan had no obligation to declare anything and there was therefore no crime of concealment.
In disputing this, prosecutors have attempted to stuff the long, long hours in court with attestations of Ghosn’s dictatorial management style, his avarice and other personal shortcomings. None of this, really, has any bearing on a case that legal experts say might ultimately hinge on a fine interpretation of the law.
If Kelly is convicted on Thursday, which many believe is the likeliest verdict of a justice system under pressure to save face, he may still leave Japan in very short order with a suspended jail sentence calculated to make a quick, diplomatically helpful end to the matter. But there are also plenty of lawyers and academics who believe that Kelly’s defence has done enough to secure an acquittal — an extreme rarity in any case, but particularly so for such a high-profile prosecution.
For a great many reasons, a not-guilty verdict would be huge. Ghosn and his supporters would have vicarious “proof” that his arrest was always a vindictive weaponisation of justice. Defence lawyers in Japan would sense that a turning point had come in their long struggle to reduce the courts’ conviction rates by even a few points. Prosecutors would be criticised for engineering a gargantuan waste of time and credibility.
The reason Kelly’s case is so potentially pivotal, though, is that either a conviction or acquittal could reshape the way corporate crime is pursued by Japan’s justice system. And not necessarily for the better.
Behind the obviously epic theatre, Ghosn and Kelly’s arrests set a precedent as one of the very first cases in Japan where the prosecution was built around a plea bargain deal with Nissan whistleblowers. The ability to strike such deals had only been available for a few months before the prosecutors pounced, following a controversial change in the law.
In principle, the expansion of the prosecutorial arsenal available to fight corporate crime and encourage whistleblowing is a good thing. But its welcome by the Japanese public, which flinches at the idea of the self-confessed guilty negotiating their way out of punishment, was always fragile.
As well as trying to burnish their reputations with a world-famous scalp, prosecutors in the Ghosn and Kelly trials were always fighting a grander campaign to build public acceptance of this new plea bargain tactic. They needed, said a senior partner at one of Japan’s biggest law firms, a “beautiful” case to make the sale to the nation. Whether Kelly is convicted or not, this has been palpably ugly from start to finish.
Many interpret Japan’s high conviction rate as a sign of inherent unfairness; in reality it is an index of profound risk-aversion by the prosecutors who only pursue cases they feel certain of winning. Kelly may leave Japan, guilty or innocent, with his tormentors in victory or defeat, institutionally less willing to take risks on cases of corporate criminality, and particularly wary of testing new waters with plea bargains.